1 IN THE HIGH COURT OF JHARKHAND Criminal Appeal (D.B.) No.165 of 2006 ------ (Against the Judgment of conviction dated 13.12.2005 and Order of sentence dated 14.12.2005 passed by the learned Additional Sessions Judge (F.T.C.), Latehar in Sessions Case No.135 of 2004.) ------ Sukhlal Singh son of Sri Darwari Singh Resident of village Ghatuwa police station- Latehar District- Latehar ….... Appellant Versus The State of Jharkhand ….... Respondent ------ For the appellant : Mrs. J.
Mazumdar, Advocate For the State : Mr. Awnish Shankar, Addl.P.P. ------ Present HON'BLE MR. JUSTICE H.C. MISHRA HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ------
JUDGMENTC.A.V ON0412.2017 PRONOUNCED ON0501/2018 Anil Kumar Choudhary, J.
This criminal appeal is directed against the Judgment of conviction dated 13.12.2005 and order of sentence dated 14.12.2005 passed by the learned Additional Sessions Judge (F.T.C.), Latehar in Sessions Case No.135 of 2004 whereby and where under the sole appellant has been found guilty and convicted for the offences under Section 396 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life, under section 397 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 7 years and also under Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for three years with fine. All the sentences have been ordered to run concurrently. 2 2. The prosecution case instituted on the basis of the fardbeyan of Army cadet Nagendra Kumar Patel recorded on 07.05.2004 at 18:45 hours at Daltonganj Railway Station Platform No.1, is that on 06.05.2004 at about 03:00 o'clock the informant along with his friends Brajesh Kumar Sharma, C squadron 3 Troop along with L.D. H.S.Dubey boarded the general compartment of TATA-HATIA-PATHANKOT Express Train bearing train No.8101 Up bearing compartment No.958408/A (General) at Ranchi to visit their respective homes in vacation. At about 10:00 p.m. when the said train was leaving ‘Tori’ railway station, some passengers of the said general compartment locked the doors. When the train was in slow motion, two G.R.P. Constables of escort party hanged at the door of the compartment and started knocking the door to open it but the miscreants present in the compartment were not opening the door. When the train got accelerated; on the request of the passengers the miscreants standing near the door all of a sudden opened the door and after pulling both the constables inside, assaulted them with iron rod and other weapons and fire arms. In the meantime about 20-25 miscreants armed with country made pistols, iron rods and other deadly weapons started looting the cash and other belongings of all the passengers. The miscreants attempted to snatch the bag of his friend H.S. Dubey sitting in lower seat. When H.S. Dubey objected; one of the miscreants assaulted him and another miscreant shot at him from country made pistol causing him grievous injury. Thereafter the miscreants snatched the bag of his friend along with the bag of the informant containing cash of about Rs.15,000/- and other items. Then by vacuuming brake, the miscreants stopped the train nearby Chetar Railway Station and 3 fled away. The informant subsequently came to know from other passengers that the miscreants looted jewelry, cash etc. from one lady passenger Indu Devi, male passengers namely Umesh Pandey, Jitwahan Mahto, Jageshwar Barai and other passengers and that the GRP constable shot dead by the miscreants was Kailash Prasad Yadav and the injured GRP constable was Basuki Yadav- whom the miscreants left presuming to be dead and that the miscreants looted the two rifles and bullets of the said GRP constables. The informant narrated the description of the miscreants seen by him and other passengers in the light of bogie and has claimed to identify them subsequently. On the basis of the fardbeyan, Barkakana Rail P.S. Case No.19 of 2004 dated 07.05.2004 under Sections 396, 397 of the Indian Penal Code and Section 27 of Arms Act was registered against 20-25 unknown accused persons and investigation was taken up. During investigation the appellant was arrested wherein he has confessed his guilt and his involvement in the aforesaid occurrence. After investigation, the police submitted charge-sheet against the nine suspected accused but only one accused i.e. the appellant, was arrested.
3. After commitment of the case to the court of Sessions, charge was framed against the accused appellant for the offences punishable under Section 396 and 397 of the I.P.C. and under Section 27 of Arms Act. Upon the accused-appellant pleading not guilty and claiming to be tried, he was put to trial. In support of its case the prosecution altogether examined 18 witnesses and proved several documents which have been marked exhibit 1 to 17. However the defence did not choose to examine any witness or to prove any document. 4 4. P.W.7-Basuki Yadav is the injured eye witness of the occurrence. He has stated that on 06.05.2004 he was posted at Rail Police Station, Barkakana and on the said date he along with A.S.I. Rama Munda, hawaldar Janardan Yadav, hawaldar Kalimuddin Khan and nine other constables was deputed for escorting TATA-JAMMUTAWI train. In that course when the train stopped at Tori station then the escort party came down at the station and when the train moved from there then the escort party boarded in another compartment and the PW7 along with constable No.272 Kailash Yadav (since deceased) leapt and hanged on to the door of the general compartment in moving train because the door was closed. When the train got accelerated then after several calls the miscreants opened the door and dragged them in to the bogie and shot at Kailash Yadav and assaulted the PW7 with iron rod, butt of the pistol, fahsul and snatched their rifles and bullets and also killed one army man. The miscreants were about 20-25 in number. They looted away cash, bags and other belongings of the passengers. The PW7 mentioned the features of the miscreants and claimed to identify them in the light of the compartment. The PW7 participated in the test identification parade of the accused Sukhlal Singh held at District Jail Daltonganj in the presence of the Judicial Magistrate and identified the accused to be the person who caused bullet injury to the constable Kailash Yadav and assaulted the PW7 with butt of pistol and snatched their rifles and bullets. In the court also the PW7 identified the accused-appellant. It is pertinent to mention here that there is absolutely no cross examination on any material part of the examination in chief of the PW7 and only a general suggestion that 5 he was deposing falsehood was given to the PW7.
5. P.W.5-Nagendra Kumar Patel is the informant of this case. He has stated that he along with his colleagues Brajesh Kumar Sharma and Hridaya Shanker Dubey at about 03:00 p.m boarded the general compartment of TATA-HATIA PATHANKOT train at Ranchi for going to their home at Rewa (M.P.). At about 10:00 p.m., when the said train departed from ‘Tori’ station then some people in the bogie shut the doors of the compartment. In the meantime two G.R.P. Constables leapt and were hanging at the door of the said compartment from outside and started knocking the door to open it. But the miscreants present in the compartment did not open the door. When the train got accelerated, at the request of the passengers the miscreants all of a sudden opened the door and dragged the constables inside the compartment and assaulted the first constable with rod and he became unconscious. Then the miscreants shot at the second constable. In the meantime about 20-25 miscreants armed with pistol, iron rod etc. spread in the compartment and looted cash, jewelry and other belongings of the passengers and tried to snatch the bag of his friend Hridaya Shanker Dubey (H.S. Dubey) which was strongly objected by his friend. Then the miscreants assaulted his friend and one of the miscreants shot at his friend with a pistol. His friend sustained injuries and fell down. Then the miscreants looted the bag of his friend along with his bag containing cash of Rs.15,000/- and other items. The occurrence continued for fifteen minutes and by vacuuming the brake the miscreants stopped the train near ‘Chetar’ station and fled away. Later on the PW5 came to know that the injured G.R.P. Constable was Kailash Prasad Yadav and his friend H.S. Dubey were 6 sent to Daltonganj Sadar Hospital for treatment. He has further stated that the faces of the miscreants were not covered and he and other passengers in the train had seen their faces in the light of the compartment and their faces can be recognized by him in future. Further, he has stated that he participated in the test identification parade of the accused appellant Sukhlal Singh at the District Jail Daltonganj in the presence of Judicial Magistrate and identified him because he was wandering armed with pistol near the PW5 during the occurrence. On being proved by the PW5 his signature on the fardbeyan was marked Ext.10. The accused present in the court was identified by the PW5. Like other witnesses, there is absolutely no cross examination on any material part of the deposition of the PW5.
6. P.W.6-Brajesh Kumar Sharma- an army cadet is the third eye witness examined by the prosecution in this case. He has also stated about the occurrence in the same manner as stated by P.W.5-Nagendra Kumar Patel. PW6 has also stated that he identified the accused in test identification parade in presence of Judicial Magistrate, Daltonganj since he identified the miscreants in the light of the compartment. He has also stated that he was a witness in the fardbeyan and on being proved by him his signature on the fard beyan has been marked as Ext.10/1. During evidence in the court also the PW6 identified the accused to be the person wandering at the time occurrence armed with pistol. In the cross examination of the PW6 also no question was put to him regarding any material particular of his deposition.
7. P.W.1-Dr. Vijay Singh, conducted the postmortem examination on the dead body of constable Kailash Prasad and found the following ante mortem injuries:- 7 i) Lacerated wound over right side of back with margin inverted and blackened-size-1 c.m. around, cavity deep. This is description of wound of entry. ii) Lacerated wound of margin everted- size-1.5 c.m. x 1.5 c.m. over left side of upper chest. On dissection of chest and abdomen-chest cavity was full of blood, laceration of right and left lungs, fracture of right upper ribs, injury (i) and (ii) communicate with each other. Both injuries were caused by fire arm. Cause of death was due to hemorrhage and shock caused by above mentioned injuries. On the same day the PW1 also conducted the postmortem examination on the dead body of army cadet H.S. Dubey, and found the ante mortem injuries as follows:- i) Lacerated wound over right side of skull-size-4 c.m. x 2 c.m. with depression of bone. ii) Lacerated wound over left side of skull-size-3 c.m. x 2 c.m. bone deep. iii) Lacerated wound of size 1.5 c.m. round with margin inverted and blackened over right side of lower chest, with tattoo marks due to BAROOD (explosive) particles which is situated around 3 c.m. of circumscribe around the wound. This description is the wound of entry. iv) Lacerated wound of size-2 c.m. round over the right side of back with margin everted-wound of exit. On dissection of chest and abdomen- Abdominal cavity full of blood with laceration of intestine, liver and right colon. Injury no. (iii) and 8 (iv) communicate with each other. Injury no.(i) and (ii) were caused by hard, blunt substance and injury no. (iii) and (iv) caused by fire arm. Death was caused due to shock and hemorrhage due to injury no.(iii) and (iv). Nothing of importance was asked to the PW1 in his cross-examination.
8. P.W.2-Kamal Khan is the Investigating officer of the case. He has described the place of occurrence and its surroundings. The PW2 recorded the statement of the informant as well as other witnesses of the case. He has prepared inquest report of both the dead bodies of Kailash Yadav and H.S. Dubey. On being proved by the PW2 the fardbeyan was marked Ext.2, Formal F.I.R. was marked Ext.3, two inquest reports were marked Ext.4 and 4/1, seizure list was marked as Ext.5, his signature on the test identification chart was marked Ext.6 and confessional statement of the accused Sukh Lal Singh was marked Ext.7. In his cross-examination the PW2 stated that the seized blood was not sent for chemical examination during investigation and the dead body was recovered from the compartment No.958408/A of train No.8101 Up. In his further cross-examination, he has described in detail about the dead body of the deceased being in pool of blood.
9. P.W.3-Surendra Kumar Pandey is the then Sub- Divisional Judicial Magistrate Palamu, who had conducted the test identification parade of the accused Sukh Lal Singh at the District Jail, Daltonganj as per rules in presence of Clerk, Dinbandhu Singh District Jail, in which the witness Basuki Yadav (PW7) identified the accused (Sukhlal Singh) and stated that the said accused fired bullet at the deceased Kailash Yadav and also fired aiming at him but it misfired and 9 the accused also assaulted PW7 with rod, butt of pistol and snatched his rifle. On being proved by the PW3 T.I.P. Chart was marked Ext.8. Nothing of any importance was put to the PW3 in his cross- examination.
10. P.W.4-Raj Kumar Mishra is the other Magistrate who had also conducted the test identification parade of the accused-appellant in connection with the aforesaid case in which PW5 and PW6 identified the above named accused and told that at the time of occurrence the aforesaid accused armed with pistol was wandering near them. On being proved by him the T.I.P. Chart has been marked as Ext.9. Nothing of any importance has been asked to the PW4 in his cross examination.
11. P.W.8-Dr. Mohan Prasad, examined G.R.P. Constable Basuki Yadav (PW7) and has found the following injuries:- (i) Cut lacerated wound over posterior aspect of scalp- 2” x 1/4” scalp deep bleeding wound, drowsiness present- caused by hard and blunt substances. He has proved the injury report which was marked as Ext.11. Nothing of any consequence was elicited in his cross-examination.
12. P.W.9-Shiv Lal Tudu- is the part investigating officer of the case. He has stated that at the platform No.1 Daltonganj Railway station, he saw that one G.R.P. Constable with pool of blood is lying dead and another G.R.P. Constable and one military cadet were seriously injured and lying in unconscious condition in general compartment No.958408/A of TATA-HATIA PATHANKOT8101Up train. PW9 recorded the fardbeyan of the informant-PW5. On being proved the fardbeyan has been marked as Ext.2. PW9 sent the 10 injured constable and military cadet to the hospital where in the course of treatment the military cadet died. PW9 recorded the statements of the witnesses, prepared seizure list, inquest reports of dead bodies and requisition of the injured Basuki Yadav (PW7). Since the place of occurrence is under Barkakana Rail P.S. hence PW9 handed over further investigation of the case to Barkakana Rail P.S.. There is nothing of any importance in his cross-examination,.
13. P.W.10-Pachu Sao is the witness of seizure of the wearing apparels of the victims. P.W.12-Shyama Nand Rai, is the then A.S.I. of Barkakana Rail P.S. who produced the material exhibits of the case in the court. P.W.11-Anil Das, P.W.13-Angad Paswan, P.W.14- Janardan Yadav, P.W.15-Kalimuddin, P.W.16-Deo Karan Singh and P.W.17-Abdul Sattar- all members of G.R.P. escort party. All of them are post occurrence witnesses. P.W.18-Radha Harijan is the then Sergeant Major, Police Lines Rail District Dhanbad. PW18 has examined two service rifles and three 0.303 empty cartridges and certified that firing was done by both rifles. On being proved by him the arms test report has been marked Ext.17.
14. The statement of the accused person was recorded under Section 313 Cr.P.C., wherein the accused Sukhlal Singh denied the circumstances appearing in evidence against him. On the basis of the evidence on record, the appellant has been found guilty, convicted and sentenced by the Trial Court, as aforesaid.
15. At the time of hearing, the learned counsel for the appellant submitted that the delay in holding the test identification has rendered the test identification unreliable and in support of her said submission she relied upon the judgments rendered by the Hon'ble Supreme Court in the cases of Soni versus State of Uttar Pradesh (1982) 3 SCC368 Siddanki Ram 11 Reddy versus State of Andhra Pradesh (2010) 7 SCC697 State of Maharashtra versus Syed Umar Sayed Abbas and Others (2016)4 SCC735and Govind and Others versus State of U.P. 1996 CRI L.J.
445. 16. Learned counsel for the appellant further submitted that as the prosecution has failed to adduce any evidence regarding seizure of any of the looted articles hence it is not a fit case to convict the appellant for the offences punishable under section 396 or 397 of the Indian Penal Code on the scanty evidence put forth by the prosecution. In this respect in support of her contention the learned counsel for the appellant relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Iqbal and another versus State of Uttar Pradesh reported in (2015) 6 SCC623 wherein the Hon'ble Apex Court has held in paragraphs 15 as under:-
“15. The evidence of identification of the miscreants in the test identification parade is not a substantive evidence. Conviction cannot be based solely on the identity of the dacoits by the witnesses in the test identification parade. The prosecution has to adduce substantive evidence by establishing incriminating evidence connecting the accused with the crime, like recovery of articles which are the subject-matter of dacoity and the alleged weapons used in the commission of the offence. (Emphasis given) 17. The learned counsel for the appellant further submitted that as the fire arm allegedly used by the accused-appellant is neither seized nor produced in court nor there is any report of any ballistic expert as to exactly what category the alleged fire arm belonged and also as there is no evidence as to in what manner the 12 provisions of Section 5 of the Arms Act has been contravened hence the learned court below erred in convicting the appellant generally under section 27 of the Arms Act without specifying as to whether the appellant has been convicted under section 27(1) or 27(2) of the Arms Act. It was also submitted that otherwise also evidence on record is insufficient to hold the appellant guilty hence the appellant be acquitted of the charges by giving him at least the benefit of doubt.
18. On the other hand, learned Additional Public Prosecutor appearing for the State defended the impugned order and submitted that so far as the contention of the appellant regarding the delay in holding the test identification parade is concerned, it is a settled principle of law that delay in holding the T.I. Parade is not per se fatal to the case of the prosecution but while judging the credibility of such identification the court should find out whether the witnesses had sufficient opportunity to see the accused at the time of occurrence and whether they had any chance to see the accused before T.I. Parade. It is also submitted that the burden of establishing the guilt is on the prosecution but that theory cannot be carried so far as to hold that the prosecution must lead evidence to rebut all possible defences. Since the contention of the appellant is that there was an undue delay in holding the identification parade, the Magistrate who held the parade and the police officer who conducted the investigation should have been cross-examined in that behalf, but having not done so, the appellant is not entitled to raise the issue of delay in holding the T.I. Parade for the first time in the appeal. It is further submitted that, the appellant– accused was first produced in the Court of Railway Magistrate on 31.05.2004 and in T.I. Parade held on 23.06.2004 the PW7 identified the appellant-accused and 13 in the T.I. Parade held on 26.06.2004 the PW5 and PW6 identified the accused appellant, but as the defence has failed to impute any motive to the prosecution for the delay in holding the T.I. Parade nor the defence has alleged any irregularity in holding the T.I. Parade and considering the fact that PW5 and PW6 being army cadets professionally trained not to panic in trying circumstances or on seeing bloodshed and the PW7 being a personnel of GRP who has also received training of combat and off and on faces criminals, is unlikely to panic at the time of the occurrences of dacoity, the learned court below has rightly believed the case of the prosecution and has rightly held that the prosecution has established its case beyond any reasonable doubt. It was also urged upon by the learned additional public prosecutor that taking into consideration that there is no imputation against any of the three eye witnesses to the occurrence, that they had the chance to see the accused before the T.I. Parade, there is no rhyme or reason to disbelieve their testimony. It is further submitted by the learned additional public prosecutor that there is no dispute that the evidence of identification of the miscreants in the test identification parade is not substantive evidence; hence conviction cannot be based solely on the identification of the dacoits by the witnesses in the test identification parade but the instant case is not a case of identification of the accused in test identification parade simpliciter rather it is a case where besides the identification in the test identification parade there is also oral testimony and identification of the accused person by the witnesses in court, which is primary and substantive evidence, therefore it is submitted that there is ample evidence in the record to bring home each of the charges for which the accused- appellant faced the trial. It is also submitted that the 14 learned trial court having rightly convicted and sentenced the accused appellant, this appeal being without any merit be dismissed.
21. Having heard learned counsels for both the sides and upon going through the evidence on record, we find that P.Ws. 7,6 & 5 are the eye witnesses to the occurrence. Their testimony is trustworthy and reliable. Nothing has been elicited in their cross examination to demolish or discredit any part of their testimony. In fact there is absolutely no cross examination in respect of any material part of the testimony of these witnesses deposed by them in their respective examination in chief and thus those portions of the testimonies of these witnesses remain unchallenged. These witnesses have narrated the occurrence in detail. They are the natural witnesses. The testimonies of these witnesses inspire confidence.
22. It is a settled principle of law that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue and without this, it is not possible to impeach his credibility. The Hon'ble Supreme Court in the case of Laxmibai (Dead) Thr. LRs. & Anr. vs. Bhagwantbuva (Dead) Thr. LRs. & Ors. reported in AIR2013(SC) 1204 in para-31 in this respect held as under :-
“31. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial 15 examination in chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses. (See: Khem Chand v. State of Himachal Pradesh, AIR1994SC226: (1993 AIR SCW3675; State of U.P. v. Nahar Singh (dead) & Ors., AIR1998SC1328: (1998 AIR SCW1200; Rajinder Pershad (Dead) by L.Rs. v. Darshana Devi (Smt.), AIR2001SC3207: (2001 AIR SCW3042; and Sunil Kumar & Anr. v. State of Rajasthan, AIR2005SC1096 : (2005 AIR SCW589.” (Emphasis given) 23. It is pertinent to mention here that there are instances galore where the Hon'ble Supreme Court of India has held that in the absence of cross-examination of a witness, the evidence of such witness remains unchallenged and ought to be believed. In the case of State of U.P v. Nahar Singh (AIR1998SC1328 the Hon’ble Supreme Court of India in paragraph no. 13 and 14 held as under :
“13. It may be noted here that that part of the statement of PW-1 was not cross-examined by the accused. In the absence of cross-examination on the explanation of delay, the evidence of PW-1 remained unchallenged and ought to have been believed by the High Court. Section 138 of the Evidence Act confers a valuable right of cross-examining the witness tendered in evidence by the opposite party. The scope of that provision is enlarged by Section 146 of the Evidence Act by allowing a witness to be questioned:
16. (1) to test his veracity, (2) to discover who he is and what is his position in life, or (3) to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture.
14. The oft quoted observation of Lord Herschell, L.C. in Browne v. Dunn, (1893) 6 The Reports 67, clearly elucidates the principle underlying those provisions. It reads thus: “I cannot help saying, that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross- examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which, it is suggested, indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness, you are bound, whilst he is in the box, to give an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but it is essential to fair play and fair dealing with witnesses.” This aspect was unfortunately missed by the High Court when it came to the conclusion that explanation for the delay is not at all convincing. This reason is, therefore, far from convincing.”(Emphasis given) Similarly in the case of Sunil Kumar and another v. State of Rajasthan (AIR2005SC1096 the Hon’ble Supreme Court observed in paragraph 13 of the judgment as under:- 17
“13. … … … … … … … … … … … … … … … … … … … … Additionally, no question was asked to the investigating officer as to the reason for the delayed dispatch of the FIR. Had this been done, investigating officer could have explained the circumstances. That having not been done, no adverse inference can be drawn.” (Emphasis given) 24. Of course in the case of Juwar Singh v. State of M.P. reported in AIR1981(SC) 373 in the facts and circumstances of that case while the defence took the plea that the testimony of the defence witnesses having not been challenged during cross- examination, their testimony should be treated as accepted. The Hon'ble Supreme Court in paragraph -5 observed as under:
“5. The accused examined three defence witnesses and one of them was Pannalal, brother of Gangaram. All of them stated that Gangaram's house was burnt down on the night of November 10, 1970 but that they did not see any of the accused persons at the place and that no one prevented anyone from trying to extinguish the fire as was claimed by P.Ws. 1, 2 and 6. Shri Mulla submitted that D.Ws. 1, 2, and 3 were not subjected to any cross-examination and therefore their evidence should be unhesitatingly accepted. We do not agree with the submission of Shri Mulla. Cross-examination is not the only method of discrediting a witness. If the oral testimony of certain witnesses is contrary to proved facts their evidence might well be discarded on that ground. If their testimony is on the face of it unacceptable. Courts are not bound to accept their testimony merely because there was no cross-examination. ………”(Emphasis given) 25. So keeping in view the aforesaid settled principle of law, it can very well be said that the appellant cannot impeach the credibility of P.W.7, P.W.6 or P.W.5 because of his failure to challenge any material portion of their testimony in their respective cross-examination and thereby providing them opportunity to explain their statements, on 18 any objection to their such testimony. Hence, in respect of unchallenged portion of the evidence of the P.W.7, P.W.6 and P.W.5 no adverse inference can be drawn and the same is to be accepted. It also remains undisputed that the PW7 sustained injury during the occurrence. Through these witnesses the prosecution has succeeded in establishing beyond reasonable doubt that the accused-appellant acting conjointly with 20-25 co-accused persons on 06.05.2004 dragged the PW7 and the deceased GRP constable Kailash Yadav in the General Class compartment of the TATA-HATIA-PATHANKOT Express Train and shot at Kailash Yadav resulting in his death and assaulted PW7 with iron rod, pistol butt and fahsul and snatched their rifles and bullets and also killed H.S. Dubey-an army man during the course of the said dacoity and looted away cash, bags and other belongings of the passengers and there is also specific evidence that accused-appellant is the person who shot at the deceased GRP constable Kailash Yadav.
26. So far as the contention of the appellant regarding the judgment of the Hon’ble Apex court rendered in the case of Iqbal and another versus State of Uttar Pradesh (supra) is concerned the same is a settled principle of law as has been held by the Hon’ble Supreme Court of India in the judgment rendered in the case of Umesh Kamat v. State of Bihar, (2005) 9 SCC200 at page 204 wherein at paragraph – 9 the Hon’ble Court held as under : “……….As pointed out in Malkhansingh v. State of M.P.(2003)5 SCC746the identification parades belong to the stage of investigation and they do not constitute substantive evidence. Substantive evidence is the evidence of identification in court because the facts which establish the identity of the accused persons are relevant under Section 9 of the Evidence Act. This Court further observed that failure to hold a test identification parade would not make inadmissible the evidence of identification in court. Thus, in the absence of identification in 19 the court at the time of tendering evidence, the results of test identification parade will be of little value…..” (Emphasis given) As already discussed above this is not a case of identification of the accused in the test identification parade simpliciter but in this case besides the identification of the accused in the test identification there is also oral testimony of the witnesses and the witnesses have also identified the accused-appellant in court, which is primary evidence and the testimony of the witnesses have not even being challenged so far as the material part of their testimony is concerned, in their cross examination.
27. So far as the contention of the appellants regarding the delay in holding the T.I. Parade is concerned, it is settled principle of law that the delay in holding the T.I. Parade is not per se fatal. The Hon'ble Supreme Court in the judgment rendered in the case of Pramod Mandal versus State of Bihar reported in (2004) 13 Supreme Court Cases 150, has held in paragraphs 18 and 20 as under:-
“1. ………. In Sk. Hasib v. State of Bihar ((1972) 4 SCC773: AIR1972SC283 it was observed by the Court that identification parades belong to the investigation stage and therefore it is desirable to hold them at the earliest opportunity. An early opportunity to identify tends to minimise the chances of the memory of the identifying witnesses fading away due to long lapse of time. Relying on this decision, counsel for the appellant contends that no support can be derived from what transpired at the parade as it was held long after the arrest of the appellant. Now it is true that in the instant case there was a delay of about three months in holding the identification parade but here again, no questions were asked of the investigating officer as to why and how the delay occurred. It is true that the burden of establishing the guilt is on the prosecution but that theory cannot be carried so far 20 as to hold that the prosecution must lead evidence to rebut all possible defences. If the contention was that the identification parade was held in an irregular manner or that there was an undue delay in holding it, the Magistrate who held the parade and the police officer who conducted the investigation should have been cross-examined in that behalf.”
“20. It is neither possible nor prudent to lay down any invariable rule as to the period within which a test identification parade must be held, or the number of witnesses who must correctly identify the accused, to sustain his conviction. These matters must be left to the courts of fact to decide in the facts and circumstances of each case. …………. … … … … … … … … … … …... … … … … … … … … Prudence therefore demands that these matters must be left to the wisdom of the courts of fact which must consider all aspects of the matter in the light of the evidence on record before pronouncing upon the acceptability or rejection of such identification.” (Emphasis given) It is pertinent to mention here that the defence has failed to impute any motive to the prosecution for the delay in holding the T.I. Parade nor the defence has alleged any irregularity in holding the T.I. Parade. No question was put to the investigating officer about any delay in holding the T.I. Parade in his cross-examination by the defence. None of the eye witnesses has been cross-examined in respect of any material part of their examination in chief in their respective cross examination. It is pertinent to mention here that out of the three eye witnesses of the occurrence who have also identified the accused– 21 appellant both in the T.I. Parade and in court during trial, two are army personnel and one is a GRP personnel. Certainly such persons are not as prone to panic under trying circumstances or on seeing bloodshed as any ordinary person. Keeping in view these facts and circumstances of the case since we have found no irregularity or unfairness in holding the test identification parade, we are of the considered view that the delay in holding the T.I. Parade is not fatal, in this case.
28. In the absence of any specific evidence about the nature of fire arm used by the accused-appellant and also in the absence of any evidence regarding existence or not of any licence of the fire arm used by the accused- appellant as well as the fact that there is no specific evidence in the record to suggest as to exactly in which manner the provisions of section 5 of the Arms Act has been violated, we are of the considered view that the evidence in the record is insufficient to convict the accused-appellant either under section 27(1) or 27(2) of the Arms Act and the learned trial court erred in convicting the accused-appellant simply under section 27 of the Arms Act, without mentioning specifically whether the accused-appellant is convicted for the offence punishable under section 27(1) or 27(2) of the Arms Act, accordingly the conviction and sentence of the accused- appellant Sukhlal Singh under section 27 of the Arms Act is set aside and he is acquitted of the said charge.
29. But so far as conviction and sentence of the accused-appellant for the offences under section 396 and 397 of the Indian Penal Code is concerned we are of the considered view that because of the discussions made in the foregoing paragraphs of this judgment the accused- appellant has rightly been convicted and sentenced for the offence punishable under section 396 of the Indian Penal Code for having along with co-accused persons conjointly committed dacoity and also 22 committed murder of GRP constable Kailash Yadav and army Cadet Hari Shankar Dubey in so committing dacoity and also under section 397 of the Indian Penal Code for the offence that at the time of committing the said dacoity, the accused- appellant used deadly weapon like fire arm and other arms and caused grievous hurt to PW7 and also attempted to cause his death. There is no illegality in the said portion of impugned judgment of conviction dated 13.12.2005 and order of sentence dated 14.12.2005 passed by Additional Sessions Judge, Fast Track Court, Latehar in Sessions Case No. 135 of 2004 whereby and whereunder the appellant namely Sukhlal Singh found guilty and convicted and sentenced for the offence punishable under section 396 as well as 397 of the Indian Penal Code hence the said conviction and sentence of Sukhlal Singh is affirmed.
30. Accordingly in the result, the appeal is allowed in part. The conviction and sentence of the accused-appellant Sukhlal Singh for the offences punishable under section 396 and 397 of the Indian Penal Code is confirmed but his conviction and sentence for the offence punishable under section 27 Arms Act, 1959 is set aside and he is acquitted of the charge punishable under section 27 Arms Act, 1959.
31. The appellant Sukhlal Singh is already in custody and undergoing the sentence. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy this Judgment. (Anil Kumar Choudhary, J.) H.C. Mishra, J.
(H.C. Mishra, J.) Dated:- the 5th January, 2018 High Court of Jharkhand, Ranchi NAFR/Animesh